14.9 Article Vi—witness Examination

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

14.9 ARTICLE VI—WITNESS EXAMINATION

14.901 Index.

2:601. General Rule of Competency

2:602. Lack of Personal Knowledge

2:603. Oath or Affirmation

2:604. Interpreters ¹⁶

2:605. Competency of Court Personnel as Witnesses ¹⁷

2:606. Competency of Juror as Witness

2:607. Impeachment of Witnesses ¹⁸

2:608. Impeachment by Evidence of Reputation for Truth-telling and Conduct of Witness

2:609. Impeachment by Evidence of Conviction of Crime ¹⁹

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2:610. Bias or Prejudice of a Witness

2:611. Mode and Order of Interrogation and Presentation ²⁰

2:612. Writing or Object Used to Refresh Memory

2:613. Prior Statements of Witness ²¹

2:614. Calling and Interrogation of Witnesses by Court

2:615. Exclusion of Witnesses ²²

14.902 Comments.

A. In General. This article really sets forth the nuts and bolts of trial advocacy and is a must-read refresher for all trial attorneys.

B. Rule 2:601. Rule 2:601 (general rule) sets forth the general principle that "every person is competent to be a witness" unless prohibited from testifying by other "evidentiary principles" or unless they are incompetent. A court can find a potential witness incompetent to testify if he or she "does not have sufficient physical or mental capacity to testify truthfully, accurately, or understandably."

C. Rule 2:602. Rule 2:602 (personal knowledge) requires that a witness can only testify to a matter if there is evidence sufficient to support a finding that the witness had personal knowledge of the matter (though this rule specifically exempts opinion and expert testimony addressed by other rules (Rules 2:701, 2:702, and 2:703)).

D. Rule 2:607(a). Rule 2:607(a) (impeachment). A unique feature of the Virginia Rules of Evidence, conceived by the Boyd-Graves Evidence Committee and adopted by the Supreme Court, is a "roadmap" rule identifying all of the various impeachment devices available in Virginia and referring users to the specific rule of evidence that applies to each. Rule 2:607(a) states the general rule of impeachment that the credibility of a witness may be

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impeached "with any proof that is relevant to the witness's credibility." It then goes on to list eight, nonexclusive methods by which a witness may be impeached. Some derive from other rules and some from the case law on witness examination. By identifying and listing the methods in a single section, the rules of evidence provide a quick and convenient reference to practitioners and judges to help decide what impeachment methods are or are not appropriate for a particular witness. No other state has such a provision.

Virginia is also unique in the nation for having an express provision on one of the most important topics in all of evidence law, the doctrine that bias of a witness is a core issue of credibility and an assured topic for cross-examination. It is almost always relevant and almost always permitted in Virginia to explore bias, since it bears on the integrity and accuracy of the entire trial process.

Rule 2:607(a) sets forth a broad rule related to the impeachment of witnesses, that the credibility of a witness may be impeached by any party other than the party calling the witness. The means of impeachment are provided in a nonexclusive list with reference to other evidentiary rules:

1.	Introduction of evidence of witness's bad general reputation for the traits of truth and veracity; 23
2.	Evidence of prior conviction; 24
3.	Evidence of prior unadjudicated perjury;

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